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6 views

al4-06

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lostbilla66
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© © All Rights Reserved
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Administrative Law: Principles and Advocacy, 4th Edition 1

CHAPTER 6
Fairness: The Right to Be Heard

Emond
Copyright Montgomery
© 2020 Publications
Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 2

Where Procedural Fairness


Rules Are Found
• Agencies’ enabling statutes; other statutes
under which agencies make decisions
• Common law principles

• Canadian Charter of Rights and Freedoms

• Canadian Bill of Rights; Quebec’s Charter of


Human Rights and Freedoms
• Section 35 of the Constitution Act, 1982

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 3

Where Procedural Fairness


Rules Are Found (cont’d)
• Procedural fairness is “contextual,” not absolute

Determining appropriate level of fairness & specific


procedures a tribunal/agency must follow
considers:
• nature of the decision

• nature of the statutory scheme

• importance of decision to the affected person

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 4

Where Procedural Fairness


Rules Are Found (cont’d)
Determining appropriate level (cont’d):
• extent to which affected person has legitimate
expectations of a particular process
• extent to which legislature intended the decision-
maker to have discretion to choose its own
procedure

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 5

The Common Law Principles of


Procedural Fairness
• Statutory fairness requirements take precedence
over common law requirements
Some types of departures from common law
procedural fairness:
• “Adequate” notice periods

• What information must be shared with other


parties

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 6

The Common Law Principles of


Procedural Fairness
The two basic principles of procedural fairness:
• the right to be heard

• the right to an unbiased decision-maker (Ch 7,


Fairness: Bias)

First pillar of procedural fairness is requirement to


provide a hearing
• In addition to fairness, tribunal has duty to give all
other parties/persons an opportunity to be heard
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 7

Components of the Right to Be


Heard
• Right to notice: All persons whose rights,
privileges, or interests may be substantially
affected by a decision are entitled to notice of the
proceeding

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 8

Components of the Right to Be


Heard (cont’d)
Limits on right to notice:
• Does not always include the right to disclosure of
evidence
• Tribunals have power to require disclosure of
particulars in addition to evidence where the
tribunal has made rules governing the process

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 9

Components of the Right to Be


Heard (cont’d)
• Requirement to retain evidence: Investigators
must retain evidence that it may be necessary to
disclose to a tribunal or party in the future [see
Charkaoui v Canada (Citizenship and
Immigration)]

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 10

Components of the Right to Be


Heard (cont’d)
• Right to be present: Parties have right to be
present throughout the entire hearing process
Tribunal may proceed in absence of a party where:
• A party has been served but does not attend

• A party continues to disrupt a proceeding

• A party “walks out” in protest

• The evidence is of a particularly sensitive nature

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 11

Components of the Right to Be


Heard (cont’d)
• Right to be represented: Parties may present
their own case or have it represented; does not
include an absolute right to an adjournment to find
representation, only a reasonable opportunity
• Right to present evidence: Parties have the right
to present evidence to establish facts of case; a
summons requires parties with relevant
information to provide it
Copyright © 2020 Emond Montgomery Publications. All rights reserved.
Administrative Law: Principles and Advocacy, 4th Edition 12

Components of the Right to be


Heard (cont’d)
• Right to cross-examine: Parties can respond to
evidence brought against them; some provinces
allow tribunals the right to place reasonable limits
on cross-examination
• Right to be heard in a timely manner and
receive a decision without delay: “Justice
delayed is justice denied”

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 13

Components of the Right to be


Heard (cont’d)
• Requirement that the person who hears must
decide: Person who hears a case is only person
who may decide the case (see Mary Shuttleworth
v Licence Appeal Tribunal)
• See also Chapter 6 feature box, “Shuttleworth,
Adjudicative Ethics, and the Modern Tribunal”

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 14

Components of the Right to be


Heard (cont’d)
• Requirement to base the decision solely on
the evidence: Parties can expect tribunal’s
decision will be based on facts established at
hearing, not on other information; Exception is
judicial notice or administrative notice

Copyright © 2020 Emond Montgomery Publications. All rights reserved.


Administrative Law: Principles and Advocacy, 4th Edition 15

Components of the Right to be


Heard (cont’d)
• Requirement to give reasons for a decision:
Arises when the decision may seriously affect an
individual’s rights, privileges, or interests, or when
reasons are necessary to exercise the right to
appeal
• For more on procedural fairness and legitimate
expectations, see Baker v Canada (Minister of
Citizenship and Immigration)
Copyright © 2020 Emond Montgomery Publications. All rights reserved.

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